Willfully ignoring entire trial record, Antonin Scalia and Clarence Thomas reduce constitutional question to a single misdeed by a single bad actor

In 1985, John Thompson was convicted of murder in Louisiana. Having already been convicted in a separate armed robbery case, he opted not to testify on his own behalf in his murder trial. He was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson's private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim's family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson's blood type.

In 1963, in Brady v. Maryland, the Supreme Court held that prosecutors must turn over to the defense any evidence that would tend to prove a defendant's innocence. Failure to do so is a violation of the defendant's constitutional rights. Yet the four prosecutors in Thompson's case managed to keep secret the fact that they had hidden exculpatory evidence for 20 years. Were it not for Thompson's investigators, he would have been executed for a murder he did not commit.

Both of Thompson's convictions were overturned. When he was retried on the murder charges, a jury acquitted him after 35 minutes. He sued the former Louisiana district attorney for Orleans Parish, Harry Connick Sr. (yes, his dad) for failing to train his prosecutors about their legal obligation to turn over exculpatory evidence to the defense. A jury awarded Thompson $14 million for this civil rights violation, one for every year he spent wrongfully incarcerated. The district court judge added another $1 million in attorneys' fees. A panel of the 5th Circuit Court of Appeals upheld the verdict. An equally divided 5th Circuit, sitting en banc, affirmed again.Advertisement

But this week, writing on behalf of the five conservatives on the Supreme Court and in his first majority opinion of the term, Justice Clarence Thomas tossed out the verdict, finding that the district attorney can't be responsible for the single act of a lone prosecutor. The Thomas opinion is an extraordinary piece of workmanship, matched only by Justice Antonin Scalia's concurring opinion, in which he takes a few extra whacks at Justice Ruth Bader Ginsburg's dissent. (Ginsburg was so bothered by the majority decision that she read her dissent from the bench for the first time this term.) Both Thomas and Scalia have produced what can only be described as a master class in human apathy. Their disregard for the facts of Thompson's thrashed life and near-death emerges as a moral flat line. Scalia opens his concurrence with a swipe at Ginsburg's "lengthy excavation of the trial record" and states that "the question presented for our review is whether a municipality is liable for a single Brady violation by one of its prosecutors." But only by willfully ignoring that entire trial record can he and Thomas reduce the entire constitutional question to a single misdeed by a single bad actor.

Both parties to this case have long agreed that an injustice had been done. Connick himself conceded that there had been a Brady violation, yet Scalia finds none. Everyone else concedes that egregious mistakes were made. Scalia struggles to rehabilitate them all.

One of the reasons the truth came to light after 20 years is that Gerry Deegan, a junior assistant D.A. on the Thompson case, confessed as he lay dying of cancer that he had withheld the crime lab test results and removed a blood sample from the evidence room...